Study: Mines' Flood of Appeals Fends Off Safety Fines

The company that runs the West Virginia mine where an explosion killed at least 25 workers frequently sidesteps hefty fines by aggressively contesting safety violations, including recent problems with the ventilation system that clears away combustible methane gas.

Bombarding federal regulators with appeals is an increasingly common industry tactic since the 2006 Sago mine disaster that killed 12 led to stiffer fines and new enforcement to punish the worst offenders, according to an Associated Press review of records from the Mine Safety and Health Administration.

While the new rules aimed to make the nation's mines safer, companies responded with challenges that have backlogged MSHA with claims that go unpaid and unresolved for years. Agency officials say the maneuvers block their ability to punish repeat violators, and worker advocates fear more tragedies.

"It's gamesmanship by the industry," said Celeste Monforton, who spent six years as a special assistant to MSHA's assistant director and is now an assistant professor of environmental and occupational health at George Washington University.

In 2005, the year before Sago, mines contested just 6 percent of the violations they faced. That rate steadily climbed to 27 percent last year, the AP found.

Massey Energy Co., which owns the Upper Big Branch mine, the site of Monday's explosion, is still contesting more than a third of all its violations there since 2007. In the past year, federal inspectors have proposed more than $1 million in fines for violations at the mine in Montcoal, W.Va. Only 16 percent have been paid.

Among the violations that have been appealed are the company's two largest fines on record, assessed in January for problems with the mine's ventilation systems.

MSHA bears part of the blame for failing to take stronger action, said Tony Oppegard, a former top federal and ex-Kentucky mining official turned safety advocate.

Oppegard said the toughest step the agency takes is sending a warning letter notifying companies that the MSHA might find them to have a pattern of violations, which could lead to closing a mine at least temporarily.

"It's the only part of the mine act that had teeth, where you could shut a mine down," Oppegard said Tuesday. "It's toothless now."

Investigators still don't know what ignited Monday's blast but believe concentrated methane may have had something to do with it. The mine has a history of violations for not properly ventilating the highly combustible gas, which is common in coal deposits.

The MSHA records do not say whether the problems cited in January were fixed or how long inspectors gave the company to resolve them.

Massey CEO Don Blankenship downplayed the link between the ventilation system and the accident.

"I don't know that MSHA thought there was a problem," he told the AP on Tuesday.

He later conceded that the explosion itself shows that "obviously, it was not a safe mine."

MSHA believes some mine operators are contesting violations to block the agency from declaring them repeat offenders.

Any delay in fixing serious violations "puts miners at risk, is at odds with the purpose of the Mine Act and mission of MSHA, and is unacceptable," Joseph Main, assistant secretary of labor for MSHA said in testimony submitted to the congressional panel that oversees the industry.

Mining officials disagree.

"These actions in no way jeopardize miner safety and health," Bruce Watzman, senior vice president of regulatory affairs for the National Mining Association, said in written comments submitted to Congress. He did not return a call seeking further comment.

Mine safety inspectors provide companies with a deadline to fix problems, and that process is separate from the appeal of fines. Most problems are fixed long before the appeal is heard, according to industry officials.

But, besides allowing companies to delay paying penalties, the appeals process can also keep mine operators from falling into a repeat-offender category, Monforton said. That designation gives regulators the power to shut down parts of a mine until violations are fixed. Companies can only be moved into a tougher category based on final orders of citations.

"It's kind of like if you have racked up 50 speeding tickets, but you're challenging all of them and it takes three years for it to go through the court system. If you get another speeding ticket, the police can't call you a repeat offender because none of these previous ones have been finalized yet," Monforton said.

Some of the appeals center around minor, common infractions: Performance Coal Company, the Massey subsidiary that runs Upper Big Branch, continues to dispute a $305 fine for excessive accumulation of combustible materials in January 2007.

Others, however, are more serious: The largest fines Performance Coal have faced there came this January, when federal officials filed two penalties totaling more than $136,000 for not developing or following a proper ventilation plan.

It's clear that companies are focusing their appeals on the costlier fines. In 2009, companies protested roughly two-thirds of the $141 million in penalties assessed by federal regulators. A backlog of some 82,000 violations and $210 million in contested penalties is pending before a review commission.

Appeals can drag on for years. AP's analysis showed that 36 percent of the more than 500 violations faced by Performance Coal in 2007 remain in dispute.

The most serious offenses are deemed "significant and substantial" violations. Regulators consider the mine's history of those violations to determine whether it has a pattern of problems. If the operator can't reduce the number of violations, then MSHA can require the withdrawal of all miners from an area where significant violations have been cited.

Roughly 38 percent of Performance Coal's violations in the past three years have been labeled "significant and substantial." The company has protested two-thirds of them.

Dennis O'Dell, health and safety director for the United Mine Workers labor union, said while one problem may get fixed the companies are still able to repeat the lapse later without any recourse for safety officials to fix the trend. As a bonus, after years of appeals, mining firms are winning average reductions of 47 percent from the review process, he said. Upper Big Branch is a nonunion mine.

"If I'm an operator, why wouldn't I do it," O'Dell said. "But in the end, you've endangered miners lives because of it. It's not the right thing to do."